SHESHANNA BHUMANNA YADAV versus STATE OF MAHARASHTRA

SHESHANNA BHUMANNA YADAV

STATE OF MAHARASHTRA

May 8, 1970

[A. N. RAY AND I. D. DUA, JJ.]

Indian Evidence Act (I of 1872). ss. 133, 114, ill. (b)-Evidence of accomplice and corroboration-Scope of.

Two accused father and son were convicted of the offence of murder· ing young boy of 15 and the offences of house-breaking and theft next day, of articles from the house of the grand-father of the deceased in which the deceased was living alone at the time of his murder. 'Dhe evidence mainly consisted of that of the apprO\·er, fhe corroboration of the approver's evidence as against one of the accused (the son) con· sisled of the following :-(i) on the day of the occurrence, two wit· nesses saw the accused the approver and another (a young boy of 15) wearing khakishorts and white shirt; (2) few days later another wit· ness saw dead body at the scene of the crime-a field, with khaki shorts and white shirt; (3) the grand-father discovered the theft and the disappearance of his grandson when he returned to the house week alter the occurrence; ( 4) the approver, on the date of his arrest pointed out to the police the scene of the crime where, among other things shirt, chain! and some bones were found-the shirt and chain were identified to be those of the deceased-and according io the medical evidence the bones were those of human being, possibly male; (5) the accused, after his arrest, produced to the police, pieee of cloth stolen from the house; (6) the evidence of pledge of cycle and sale of cycle carrier belonging to the granO-father of the deceased: (7) sale of some utensils belonging to the grand-father of the deceased, by the accused. after scrapping off the name; and (8) the finding of cloth belongi•lg to the grandfather of the deceased in tailor's shop. which the accused hastened to take away, when he learnt that the grand-father was questioning the tailor about the cloth.

As regards the other accused (the father) the corroborating evidence consisted of the following :- (1) there were civil and criminal pro· ceedings between him and the grand'father of the deceased O\'er the pos· session of the house : ( 2) he gave and sold several, articles and pieces of silver to witness who was traced by the police as result of the s.tate-ment of the accused (sen). The articles were produced before police. and all of them except one lump of silver, were identified by the grand-G father of the deceased as his articles; (3) it was this accused who gave the piece of cloth to the approver who ~ave it to the, tailor and which was hastily taken away by his son; and (4) he joined hi, son in the sale of cycle carrier.

On the question whether the corroboration

was sufficient in law.

HELD: In Sarwan Singh v. State of Punjab, [1957] S.C.R, 953 and in Lachi Ram v. State of Punjab, [1967] I S.C.R. 243, it was held that the court should, be &atisfied : (!) that the apryrover or accomplice was reliable witness; (2) there must be reliable corroboration of the appro,-er's evidence; and (3) there must be sufficient corroborative evidence in material particulars to connect the accused with the crime. The nature of

co~roboration is that it is confirmatory eviden_ce and may consist -of_ the evidence of another witness_ or of circumstances. like conduct of the accused. When it is said that corroborative evidence must implicate the accus_ed in material particulars it means that it is not enough that piece of evidence tends to confirm the truth of part of the testimony to be corroboratecl. It must confirm that part of the testimony which suggests that the crime was committed by the accused. [622 E-F; 625 A-BJ

In the present case, apart from the relationship between the two accused, there was also close association in the disposal of the ~rticles. The close proximity of time between the murder and theft points to the inescapable conclusion that they formed part of the same transaction. Since the transaction was one composite unit of murdering and committing theft, and it was found that the approver was reliable witness, all the pieces of evidence afforded sufficient corroboration of the approver's evidence in material particulars ancl proved that the accused were guilty" of the offences with which they were charged. [624 C-D; 625 D, El

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 225 of 1969.

Appeal by special leave from the judgment and order dated December 18, 1962 of the Bombay High Court in Criminal Appeal No. 1426 of 1968 and confirmation Case No. 21 of 1968.

Y ogeshwar Prasad, for the appellant.

S. B. Wad and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by

Ray, J. This appeal by special leave is against the judg-ment dated 18 December, 1968 of the High Court at Bombay dismissing the appeal and confirming the convict;cn 0f Moti alias Narayan Shesharina Yadav and Sheshanna Bhumanna Yadav accused No. 2 nd 3 respectively except that the convic-tion of accused No. 2 of the substantive oftcn~c of murder ,. under section 302 was altered and accused No. 2 was convicted of an offence under section 302 read with section 120B as well as of offence under section 302 read with section 34 of the Indian Penal Code. The High Court confirmed the sentence of death passed against accused No. 3 Sheshanna Bhumanna Yadav. Accused No. 2 son of accused No. 3 was at the time of the judgment of High Court of 17 years of age. The Hip Court reduced the punishment of accused No. 2 to rigorous imprison-ment for life. Accused No. 1 Hiralal was the domestic servant of Dr. Nanavati grandfather of the deceased Narendra. Accused No. 2 is the son of accused No. 3.

Accused No. 1 Hiralal Jamnadas Joshi, accused No. 2 Moti alias Narayan Sheshanna Yadav and accused No. 3 Sheshanna Bhumanna Y adav were charged with having entered into crimi-nal conspiracy with approver Dinkar Sakharam between 19·

December, 1967 and 4 Janutiry, 1968 at Deolali Camp for the. purpose of committing the murder of Narendrakumar and com-mitted house breaking and thefts in the house of his grand-father Dr. Nanavati and disposed of the property so obtained . and caused the evidence of murder to disappear with the inten-tion of screening the offenders from lawful punishment and •that these acts were done in pursuance of the said criminal conspiracy, an offence punishable under section 120B read with sections 302, 454, 380, 414 and 201 of the Indian Penal Code. Accused No. 1 to 3 were further charged with having committed the murder of Narendrakumar in complicity with approver Dinkar Sakharam and the said murder came to be committed in fur-tlv.rance of common intention of all the accused an offence punishable under section 302 read with section 34 of the Indian Penal Code. They were further charged under sections 201, 454,. 380 and 411 of the Indian Penal Code.Dr. Dalichand Nanavati the grand-father of deceased Naren-drakumar who met unnatural and unfortunate end at the hands of accused No. 2 and one Dinkar Sakharam, subsequently turned approver, resided at Deolali Camp· at Dhondi Road i~ bunga-low No. 17 for about 11 years. He was registered medical practitioner. At the relevant time he was in pharmaceutical business for the manufacture of medicines. The head office was at Bombay. The branch was at Deolali. The owner of bungalow No. 17 was Narsanna Bhumanna Yadav brother of accused No. 3. Narsanna was person of unsound mind and accused No. 3 was the holder of power of attorney. Accused No. 3 resided at the rear portion of bungalow No. 17. The bungalow was agreed to be sold to Dr. Nanavati. There were civii and criminal proceedings out of that transaction. Bungalow Nu. 17 was eventually sold to third party on 11 May, 1964. In the sale deed it was said that possession of the portion in the occupation of Dr. Nanavati would be handed over to the vendee when the proceedings pending against Dr. Nanavati concluded. Dr.. Nanavati succeede~ in those proceedings. Therefore, pos-se'.s1on could 1not be given by the vendor to the vendee.

In the month of November, 1967 Dr. Nanavati's wife left Deolali for Jodhpur. Dr. Nanavati also left Deolali and went to l1is native place leaving his grandson Narendra, who was about 15 years of age in the care of his domestic servant accused No. 1.

The prosecution case was as follows. Accused No. 3 thought that Dr. Nanavati's departure from Deolali leaving his grandson Narendra at the bungalow in charge of the domestic servant was ~ood opportunity to commit theft of articles in ~ house of Dr. Nanavati and to murder his grandson Nare)11lra

with ·a view to frightening Dr. Nanavati to vacate the bungalow.

Accused No. 3 called Dinkar on 19 December, 1967 and sug-gested to Dinkar that the latter should commit the murder of Narendra after 21 December, 1967 when Dr. Nanavati would leave the bungalow and his grandson Narendra woulj be there witn the domestic servant. Accused No. 3 proposed reward to Dinkar, namely, motor cycle and further sum of Rs. 100 .Accused No. 3 told Dinkar that the said accused had committed two murders prior to that date but nothing happened to him. Dinkar at first expressed his inability to undertake the job. Accused No. 3 then said that Dinkar should take accused No. 2 who was the son of accused No. 3 for the. job.

Accused No. 2 and Dinkar started getting familiar · and .friendly with Narendra. They, visited his house regularly. They moved about with Narendra. On 25 December, 1967 accused No. 1 the domestic servant of Dr. Nanavati left Deolali and went to Bombay. Ac~used No. 2 and the. approver Dinkar took Narendra out with the intention of murdering him but because of ·certain interruptions they could not muster courage to achieve that opject. On 27 December, 1967 accused No. 3 called Dinkar and told him and accused No. 2 that he was going to Nasik in connection with some court work and they should murder Narendra ar.d that he would look to everything after his return from Nasik. Nasik is about 5 or 7 miles from Deolali. · Accused No. 2 and Dinkar took Narendra to lonely area beyond Barne's High School on the pretext of collecting clothes from washerman and w.~nt to the house of the latter -and col-lected coaple of garments. Thereafter they went to gard.~n where they drank water and then went to open field. There they plucked fresh groundnuts and started eating them. Accused No. 2 and Dinkar took Narendra to jowar field. Dinkar gave blow with his hand on the neck of Narendra as result of which Nar.~ndra fell down. Accused No. 2 and Dinkar held Narendra tightly. Dinkar set upon his abdomen and started ·choking his throat with both his hands and accused No. 2 gag-ged his mouth and nose. Dinkar gave blows on Narendra's abdomen. After Narendra was choked for about 10/15 minutes, he breathed his last.Accused No. 2 then asked Dinkar to take out the key of the bungalow which he had seen Narendra putting in his pocket and Dinkar removed the key and gave it to accused No. 2. Ac;:used No. 2 scraped some earth and dug small pit and placed Naren-.dra in it, face downwards, and covered it with some loose earth. Accused No. 2 and Dinkar then returned to the house of accused No. 3. On being told that accused No. 2 and Dinkar had ac-

complishec! the murder of Narendra accused No. 3 was happy and gave them Rs. 10 to celeberate the occasion by seeing picture. Accused No. 3 told accused No. 2 and Dinkar that the following day they must take out all the goods from the house of Dr. Nanavati and hand them over to him.

When Dinkar went to the house of accused No. 3 the fol-lowing morning, Dinkar heard accused No. 2 and 3 saying that •[1]Dr. Nanavati would not be able to live in that bungalow any longer. Accused No. 2 and Dinkar then went to the bungalow of Dr. Nanavati and opened the lock with the key which had been removed from Narendra's pocket. Accused No. 2 and Dinkar locked the front door from outside and kept the back door ajar and removed large number of articles which were in cupboards which they opened with the help of bunch of keys which they found in the house. Accused No. 2 antl Dinkar again went to the bungalow of Dr. Nanavati on the subsequent day. They removed two cycles and several other articles and. handed them over to accused No. 3. Accused No. 3 gave to the approver Dinkar cycle and some of the property which had been recover.~d from the house of Dr. N anavati.

Dr. Nanavati returned to Deolali along with his wife on 4 January, 1968. They found the front door of the house locked. They made enquiries. Ultimately, they entered the house by breaking open the lock and found that Narendra was not in the house, that the whole house had been ransacked atld the back door was ajar. Dr. Nanavati reported the matter td the police. Clue was furnished by piece of cloth which had been stolen from the house of Dr. Nanavati. That piece of cloth had been given by accused No. 3 to the approver Dinkar who gave it to tailor named Thakur for stitching pair of trousers for him. Dr. l\anavati happened to go to the shop of Thakur and made en-quiries about the piece of cloth which was found in the tailor's shop. Accused No. 2 and Dinkar took away the cloth from the tailor's shop when they heard of the enquiries about the piece of cloth. Dinkar gave some money to the tailor. Dinkar and accused No. 2 raised some money by pledging cycle which they 'hi!d .'~ith them. . The police came to the tailor's shop, made enqumes and ultnnately accused No. 2 and Dinkar were arrested on 23 January, 1968. Dinkar pointed out the place of the occurrence to the police on that day. On 24 January, 1968 some human bones were found at that place. On 25 January 1968 acc~sed No. 3 was arrested. Dinkar and· accused No. 2 made van~us statements and led the police to various places. Several articles stolen from the house of Dr. Nanavati were re-covered. On 12 February, 1968 Dinkar made full-fledged: detailed confession.

In the High Court three questions were canvassed. Firs1, whether there was corroboration in regard to the crime. Secondly, whether there was corroboration in regard to accused No. 2 and 3 being guilty of the offence. Thirdly, whether there was corroboration in regard to the approver's story about the cons-piracy and the common intention by way of pre-conceived plan to murder Narendra. The High Court found that there was corroboration of the evidence which connected accused No. 2 .and 3 not only with the offence of theft but also with murder. The High Court also came to the conclusion that there was cor-roborat!on of the evidence of Dinkar in material particulars in regard to the connection of the accused with the crime and in regard to the conspiracy as we]] as the common intention.The law with regard to appreciation of approver's evidence .is based on the effect of sections 133 and 114 illustration ( b) of the Evidence Act, namely, that an accomplice is competent to depose but as rule of caution it will be unsafe to convict upon his testimony alone. The warning of the danger of con-victing on uncorroborated evidence is therefore given when the evidence is that of an accomplice. The primary meaning of .accomplice is any party to the crime charged and some one who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may con-sist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required. Corro-boration must C<l\llllect or tend to connect the accused with the time. When it is said that the corroborative evidence must implicate the accused in material particulars it means that it i> not enough that piece of evidence tends to confirm the lruth of part of the testimony to be corroborated. That evidence must confirm that 'Part of the testimony which suggests that the •crime was committed by the accused. If witness says that the accused, and he stole the sheep and he put tl.e skins in certain place, the discovery of the skins in that place would not corroborate the evidence i)f the witness as against the accused. But if the skins were found. in the )ccused's house, this would corroborate because it would tend to confirm the statPment that the accused had some hand in the theft.

This Court stat.ed the Jaw of corroboration of accomplice evidence in several decisions. One of the earlier decision is Sarwan Singh v. State of Punjab(') and the recent decision is Lachi Ram v. State of Punjab(2). In Sarwan Singh's case(') this .Court-laid down' that before the court would look into the (I) (1957] S.C.R: 953. (2) [l967] I S.CR. 243

corroborative evidence it was necessary to find out whether the approver or accomplice was reliable witness. This Court in Lachi Ram's case(1) said that the first test of reliability of ap-prover and accomplice evidence was for the court to be satis-fied that there was nothing inherently impossible in evidence. After that conclusion is reached as to reliability corroboration is required. The rule as to corroboration is based on the reasoning that there must be sufficient corroborative evidence in material pa1ticulars to connect the accused with the crime.

In the present appeal, counsel on behalf of the appellant con-tended that there was no corroboration of the actual parti-cipation in the murder and secondly that accused No. 3 could be guilty of theft but not of murder. The washerman said that Dinkar was his classmate and through Dinkar he came to know accused No. 2. The washerman further said that he used to wash the clothes o;f accused No. 2 and on 27 December, 1967 Dinkar and accused No. 2 came to the washerman's house to take out few clothes which he had washed for them. The washer-D man also said that Dinkar and accused No. 2 had with them boy who was of fair skin and wore khaki shorts and white shirt.

Mohan Lal Boob, an agriculturist gave evidence that on 27 December, 1967 he was watering the crops. Three persons turn-ed up one of whom was accused No. 2 and the other was known to him by face and the third was boy of 14 or 15 years of age wearing khaki shorts and shirt. Mohan Lal Boob said that he saw all of them sitting down in the field, drank water and purchase radishes from woman who was sitting nearby.

It may be difficult to find corroborative evidence of the actual killing. Dinkar showed the place of occurrence. Even-tually, few things were discovered there, namely, shirt, chain, skull having the upper jaw with 13 teeth, bone, bunch of hair. These things were found on 28 January, 1968. The shirt and the chain were identified by Dr. Nanavati and his wife to belong to Narendra. girl of 14 named Garadin Bride who was classmate of Narendra said that Narendra wore chain similar to the one that was shown.· The medical evi-dence was that the bones were those of human being p~bably male. Beyond that the medical evidence does not assist the . proserution. The High Court found that. the d~ath of Nare~dra · was not disputed because it was put to Dmkar m cross-examma-tion that it was Dinkar alone who killed Narendra., Theref~re. the medical evidence as to the skull and the bone 1s not o~ llI\-poitance in_ view of the death of. Narendra. Dr .. Nanavah en-

(1) (1967) I S.C.R. 243.

tered the house by breaking open the lock. He found the back door left ajar. The key which was produced by Dr. Nanavati was found to fit the lock though the lock could not be operated with the key itrJ. view of the fact that Dr. Nanavati had broken it open for gaining entry into the house.

There is also evidence of Kisan Prasad that after Christmas day in 1967 he saw dead body which had on it khaki shorts and white shirt. If the murder of Narendra and the theit were not parts of the same transaction, Narendra would not have been taken out to the field to be murdered there to eliminate the possi-bility of detection. The close proximity between murder and theft points to the inescapable conclusion that they formed part of the same transaction. Narendra was seen alive by Kewa~ Ram, owner of the betel shop on 26th December, 1967. Hira Lal, the domestic servant of Dr. Nanavati left Deolali on 25 December, 1967. The theft could not have been c01nmitted before the murder because in that case there would be complaint by Narendra and the house in that case would also have been broken open for committing the murder. All these features prove that the murder and the theft formed ihe same transac-tion and were committed by the same persons. Narendra was seen alive in the company of accused Ne;>. 2 and Dinkar. That was the .evidence of the washerman as also of the agriculturist Mohan Lal Boob. These. witne~ses further identified the shorts and shirt c.f Narendra.

Accused No. 2 produced the piece of cloth which was iden-tical with the cloth of the matteress cover produced by Dr. Nanavati. Both the pieces of the cloth were of the identical design. The.pledgin~bf the cycle by accused No. 2 is of sig-nificance. The cycle Was identified both by Dr. Nanavati · and . his wife. The next piece of evidence is that accused No. 2 sold some utensils to Gadekar. One of the utensils was found to have name thereon scraped off. There was also piece of hand-writing with the signature of accused No. 2 at the foot of it and that was the list of the articles sold to Gadekar. There were some articles found from the tailor's shop. The evidence of The discoverythe tailor was 1 that that those articles were given by accused No. of the chain which Narendra wore was identified by 2. Dr. Nanavati. Accused No. 2 s,old cycle carrier to Rupvate on 16 January, 1968. The sale of that article was 'discovered on 23 January, 1968. Dr. Nanavati identified the cycle carrier. That identification was not challenged. All these pieces of evidence prove the connection of accused No. 2 with the crime.With regard to accused No. 3 .it is found that there were civil and criminal proceedings between him and Dr. Nanavati.

Accused No. 3 had the motive not only to make it impos5ible for Dr. Nanavati to stay in the bungalow but also to commit theft in his house. Accused No. 3 gave several articles to person called Takalkar. Takalkar had dealings with accused No. 3 in the past. Takalkar said that accused No. 3 gave him soii1e pieces from silver idols and other silver articles and wanted money by disposing of the same. Takalkar purchaseu the entire silver material from accused No. 3 for Rs. 175. Takalkar also said that at the request of accused No. 3 he kept that bag of 'utensils in his godown and gave the key of th~ godown to accused No. 3 who afterwards returned the key The police came to the shop of Takalkar and he was asked to produce the gunny bag which he did. The articles in the gunny bag were taken and the articles excepting the ·lump of silver were identi-fied by Dr. Nanavati and by his wife. The identification was not challenged in cross-examination. It is obvious that silver lump could not be identified. At this stage it is to be noticed as to whether there is evidence to connect accused No. ~ with murder. The transaction was one composite unit of murdering 1)' Narendra and committing theft. The discovery of articles in the godown of Takalkar was as result of statement by accused No. 2.. The name of accused No. 3 was found in the note-book of Takalkar. The relationship of father and son between accused No. 3 and accused No. 2 is not to be lost sight of. Accused No. 2 and 3 went together for the sale of cycle carrier to Rupvate: The High Court rightly came to the conclusion· that there was sufficient corroboration of the evidence o[ Dinkar in material particulars and that Dinkar was reliable witness and it was proved that accused No. 2 and 3 were guilty of the offence. In view of the fact that there was capital sentence of accused No. 3 we went through the evidence to find out as to whether there was any infirmity in evidence. We have found none.

The appeal therefore fails. The accused will surrender to his bail, if any. Y.P.S. Appeal dismissed. dismissed.

Appeal dismissed. dismissed.